Sun | May 27, 2018

Laws of Eve | Sole custody vs joint custody

Published:Monday | January 29, 2018 | 12:00 AM

Many lengthy, bruising, and costly child-custody battles are fought in court after couples separate. Invariably, one party is seeking sole custody and wants autonomy- to move on with his or her life without enduring toxic discussions to try to reach agreement over issues concerning the children - while the other party is seeking inclusion.

All custody matters are determined against the background of the welfare of the child being the first and paramount consideration, and it is never to be forgotten that each case must be decided on its own set of facts. A couple's inability to communicate effectively in the interest of the child is one of the important factors that the court considers in making its decision, and there is caution against the optimistic belief that communication will improve once litigation has ended.

 

DISTINCTION EXPLORED

 

In a recent Court of Appeal decision - LMP v MAJ [2017] JMCA Civ 37 - the distinction between joint and sole custody was explored. Although the sole-custody order was upheld, I am of the view that the guidance issued to the parties in that case should inform negotiations about custody in all matters. The learned judge said:

"It is important, for the guidance of these parties going forward, to note that the grant of custody to one party does not entirely deprive the other party of any right to an input in respect of the major decisions to be made concerning the child and the child's welfare. That used to be the thought concerning orders for custody, but it is an erroneous approach. Ormrod LJ in Dipper v Dipper [1981] Fam 31 explained that the correct approach is that whereas in day-to-day matters the party who is granted custody is naturally in control, neither parent has a pre-emptive right over the other in major or life-changing matters. He said at page 45:

"It used to be considered that the parent having custody had the right to control the children's education - and in the past their religion. This is a misunderstanding. Neither parent has any pre-emptive right over the other. If there is no agreement as to the education of the children, or their religious upbringing or any other major matter in their lives, that disagreement has to be decided by the court. In day-to-day matters the parent with custody is naturally in control. To suggest that a parent with custody dominates the situation so far as education or any other serious matter is concerned is quite wrong ..."

Cumming-Bruce LJ agreed with the view expressed by Ormrod LJ. The learned judge of appeal said that a parent is always entitled, despite his or her custodial status, to be consulted on major matters concerning the child. Cumming-Bruce LJ said, in part, at page 48:

"As Ormrod LJ has explained ... it being a fallacy which continues to raise its ugly head that, on making a custody order, the custodial parent has a right to take all the decisions about the education of the children in spite of the disagreements of the other parent. That is quite wrong. The parent is always entitled, whatever his custodial status, to know and be consulted about the future education of the children and any other major matters. If he disagrees with the course proposed by the custodial parent he has the right to come to the court in order that the difference may be determined by the court."

Perhaps if parties adopted this approach to parenting there would be fewer contested custody claims, and the parties could focus on the necessary counseling (for the parents and the children) to help to heal the naturally occurring wounds from a fractured relationship and pave the new course of their lives.

- Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com